William Farrar v. Steve Harris and Debbie Harris--Appeal from 114th District Court of Smith County

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Laws-info.com » Cases » Texas » 12th District Court of Appeals » 2007 » William Farrar v. Steve Harris and Debbie Harris--Appeal from 114th District Court of Smith County

State: Texas

Court: Texas Northern District Court

Docket No: 12-06-00256-CV

Case Date: 10/17/2007

Plaintiff: William Farrar

Defendant: Steve Harris and Debbie Harris--Appeal from 114th District Court of Smith County

Preview:Bobby Blake Newton v. The State of Texas--Appeal from 272nd District Court of Brazos County
IN THE TENTH COURT OF APPEALS No. 10-06-00160-CR BOBBY BLAKE NEWTON, Appellant v. THE STATE OF TEXAS, Appellee From the 272nd District Court Brazos County, Texas Trial Court No. 05-00731-CRF272 OPINION ON REMAND A jury convicted Bobby Blake Newton of indecency with a child and aggravated sexual assault by contact and assessed punishment at twenty years' imprisonment on the indecency count and sixty years' imprisonment on the aggravated sexual assault count. Newton contends in two points that the court abused its discretion by admitting extraneous-offense evidence under Rules of Evidence 404(b) and 403 respectively. On original submission, this Court, with Chief Justice Gray dissenting, reversed the conviction, finding that the extraneous-offense evidence was not admissible under Rule 404(b). See Newton v. State, 283 S.W.3d 361, 367-68 (Tex. App.--Waco 2007). The Court of Criminal Appeals reversed and remanded the case to this Court for reconsideration in light of its decision in Bass v. State, 270 S.W.3d 557 (Tex. Crim. App. 2008).1 See Newton v. State, 275 S.W.3d 490 (Tex. Crim. App. 2009) (per curiam). We will affirm. Rule 404(b) Newton contends in his first point that the court abused its discretion by admitting evidence that he sexually assaulted his step-daughter L.D. about twenty-five years before the charged offenses.2 Specifically, he argues that the extraneous offense is not sufficiently similar to the charged offenses and is too remote. "Whether extraneous offense evidence has relevance apart from character conformity, as required by Rule 404(b), is a question for the trial court. " De La Paz v. State, 279 S.W.3d 336, 343-44 (Tex. Crim. App. 2009) (quoting Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003)). We review a trial court's ruling on the admissibility of extraneous offenses under an abuse-of-discretion standard. Id. As long as the court's ruling is within the "zone of reasonable disagreement," it will be upheld. Id. Newton presented four points on original submission. See Newton v. State, 283 S.W.3d 361 (Tex. App.--Waco 2007), rev'd, 275 S.W.3d 490 (Tex. Crim. App. 2009) (per curiam). We overruled two and sustained one. Id. Only the State sought review of our decision, and the Court of Criminal Appeals reversed on the sole point we decided in Newton's favor. See Newton, 275 S.W.3d at 490. Newton has filed a supplemental brief on remand narrowing his appellate points accordingly. See 10TH TEX. APP. (WACO) LOC. R. 19 (providing for filing of supplemental briefs upon remand from Court of Criminal Appeals). 1 The "extraneous offense" regarding L.D. actually entails repeated sexual abuse against L.D. committed over several years. The term "extraneous offense," when used with reference to L.D., refers to this series of extraneous offenses and not to any particular extraneous offense. 2 Newton v. State Page 2 Sufficient Similarity To be admissible for rebuttal of a fabrication defense, "the extraneous misconduct must be at least similar to the charged one." Wheeler v. State, 67 S.W.3d 879, 887 n.22 (Tex. Crim. App. 2002); Galvez v. State, No. 10-06-00332-CR, slip op. at 5, 2009 Tex. App. LEXIS 6300, at *8 (Tex. App.--Waco Aug. 12, 2009, no pet. h.) (not designated for publication); accord Dennis v. State, 178 S.W.3d 172, 178 (Tex. App.--Houston [1st Dist.] 2005, pet. ref'd). Although some similarity is required, the requisite degree of similarity is not as exacting as necessary when extraneous-offense evidence is offered to prove identity by showing the defendant's "system" or modus operandi. Dennis, 178 S.W.3d at 179; see Galvez, No. 10-0600332-CR, slip op. at 5, 2009 Tex. App. LEXIS 6300, at *8. Here, the extraneous offense is sufficiently similar to the charged offense. Both victims were Newton's step-daughters; both were about ten when Newton sexually assaulted them; both were similar in appearance; Newton did not threaten either of them; and Newton abused both of them for several years. See Galvez, No. 10-06-00332CR, slip op. at 6, 2009 Tex. App. LEXIS 6300, at *9; Blackwell v. State, 193 S.W.3d 1, 14-15 (Tex. App.--Houston [1st Dist.] 2006, pet. ref'd); Dennis, 178 S.W.3d at 179; see also Bargas v. State, 252 S.W.3d 876, 893 (Tex. App.--Houston [14th Dist.] 2008, no pet.) (addressing similarity of extraneous offense in Rule 403 analysis). Newton himself conceded on cross-examination that the extraneous-offense evidence and the charged offense were "remarkably similar." Newton v. State Page 3 Remoteness The remoteness of an extraneous offense does impact its probative value. See, e.g., Reyes v. State, 69 S.W.3d 725, 740 (Tex. App.--Corpus Christi 2002, pet. ref'd). However, Rule 404 does not impose any presumptive time limitation which must be met for an extraneous offense to have probative value. See TEX. R. EVID. 404; Hernandez v. State, 203 S.W.3d 477, 480 (Tex. App.--Waco 2006, pet. ref'd); Prince v. State, 192 S.W.3d 49, 55 (Tex. App.--Houston [1st Dist.] 2006, no pet.); Corley v. State, 987 S.W.2d 615, 620 (Tex. App.--Austin 1999, pet.). Evidence either has probative value, or it does not. See 1 STEVEN GOODE ET AL., GUIDE TO THE TEXAS RULES OF EVIDENCE

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